"Equal Treaty Rights," Resident Status & Forum Non Conveniens
Paust, Jordan J., Houston Journal of International Law
In an essay appearing earlier in the Texas Bar Journal, (1) I addressed the meaning of the phrase "equal treaty rights" utilized in the Texas Open Forum Act. (2) Since then, the Supreme Court of Texas has rightly ruled with respect to the International Covenant on Civil and Political Rights (3) (International Covenant) that
Article 14(1) requires all signatory countries to confer the right of equality before the courts to citizens of the other signatories.... The Covenant not only guarantees foreign citizens equal treatment in the signatories' courts, but also guarantees them equal access to these courts.... [T]he language of the Covenant provides for equal access to courts and equal treatment in civil proceedings ... [and thus] satisfies the ... initial burden of establishing 'equal treaty rights' [within the meaning of the Texas legislation]. (4)
Indeed, Articles 2, 3, 14, and 26 of the International Covenant absolutely require an equality of treatment, access to our courts, and that there be no "distinction of any kind, such as ... national origin, ... or other status." (5) Additionally, Article 50 of the International Covenant mandates: "The provisions of the present Covenant shall extend to all parts of federal States without any limitations or exceptions." (6)
Furthermore, the Supremacy Clause of the U.S. Constitution mandates that "all ... Treaties ... shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding." (7) Thus, the International Covenant, as treaty law of the United States, and the Supremacy Clause of the U.S. Constitution require that Texas law not be interpreted or applied in any manner that would foster a denial of equal access to courts because of the national origin or residential status of a claimant or in any way impair or subtract from U.S. treaty obligations and policy concerning such equality of treatment and freedom from discrimination on the basis of national origin or other status. (8) Any other interpretation, threshold, or limitation is simply beyond the power of the State and is controlled by supreme law of the land and, as the Supreme Court has ruled, federal policy evident therein. (9)
One problem with the present legislative scheme in Texas is that section 71.051 of the Texas Civil Practice and Remedies Code contains a significant distinction on the basis of resident status (10) that would deny equality of treatment and equal access to courts. Thus, the scheme set forth in section 71.051 denies certain foreign nationals and other non-residents equal treatment and equal access to courts and it is unavoidably violative of the International Covenant, not to mention several other treaties of the United States. (11) Particularly relevant is the prohibition of distinctions regarding national or social origin or "other status," which covers resident status. (12) As noted, the Supremacy Clause of the U.S. Constitution and Article 50 of the International Covenant mandate that the treaty-based rights to equal treatment and equal access to courts prevail. Therefore, what the Texas law provides to its residents must also be provided to non-residents who are entitled to equal treatment and equal access to courts by treaties of the United States.
With respect to impermissible discrimination based on "other status," the phrase, like other provisions relevant to treaty-based rights, (13) is to be interpreted broadly. (14) For example, the Human Rights Committee created under the International Covenant has recognized that the Covenant's requirement of non-discrimination applies to all persons who are within a state's territory regardless of their resident status. (15) Moreover, the European Court of Human Rights has recognized that with respect to the same phrase contained in a different human rights treaty impermissible discrimination can occur if a non-resident is treated differently than a resident. …